ANJALI NAMHATA Vs. GOURI BHUNIA

JUDGEMENT

(1.) This is an application against the order dated 27.07.2009 passed by the learned Additional District Judge, Sixth Court, Alipore, District South 24 Parganas in Misc. Case No.33 of 2005 thereby dismissing the misc. case filed under Order 9 Rule 13 of the Code of Civil Procedure. The short fact of the case is that the opposite party filed an application under Section 7 read with Section 10 of the Guardians and Wards Act, 1990 for appointing her as guardian of the two minors, namely, Subhangi Namhata and Subhagata Namhata, two children of her daughter. The opposite party got an ex parte order against the petitioner. The petitioner had no knowledge about the ex parte decree and she came to know about the ex parte decree in June, 2005. Thereafter, she filed an application for information on 02.07.2005 and got the information on 05.07.2005. Then she filed the case under Order 9 Rule 13 of the C.P.C. for vacating the ex parte decree passed against her. Upon consideration of the materials on record, the learned Additional District Judge rejected the misc. case under Order 9 Rule 13 of the C.P.C. Being aggrieved, the petitioner has preferred this application.

(2.) Upon hearing the learned Advocate for the parties on perusal of the materials on record, I find that the maternal grandmother of the two minor children obtained an ex parte decree under Section 7 read with Section 10 of the Guardians and Wards Act, 1990 appointing her as the guardian of the two minor children. The petitioner is the grandmother of the two minor children. Her son and daughter-in-law died on 12.06.2003 and 26.06.2003 leaving the two minors as their heirs. The two minors were kept in the custody of their maternal grandmother. The petitioner appeared in that case by filing a vakalatnama and on 08.01.2004 the petitioner did not take any step and so the date was fixed for ex parte hearing on 04.02.2004. On that day, the applicant (opposite party herein) submitted her deposition-in-chief by way of affidavit which was kept with the record fixing the next date on 17.02.2004 for order. Ultimately, the ex parte decree was passed on 17.02.2004. The petitioner herein filed the application for setting aside the ex parte decree on 30.07.2005.

(3.) Mr. Chatterjee, learned Advocate for the petitioners, has contended that application for setting aside an ex parte order could be filed within 30 days from the date of knowledge and such date of knowledge should computed from the specific knowledge about passing of the ex parte order. In fact, on getting an information that an ex parte decree was passed, he filed an information slip for verification and then upon getting the concrete information on the basis of such information slip on 05.07.2005, she filed the application for setting aside the order on 30.07.2005. Therefore, the application for setting aside the ex parte decree should be treated as well within the time limit. In support of his submission Mr. Chatterjee has referred to the decision of Panna Lal Vs. Murari Lal (dead) reported in AIR 1967 SC 1384. That decision refers to when summons was not properly served. In the instant case, I find that the petitioner appeared in the said misc. case bearing number Act VIII case no.256 of 2003 by filing vakalatnama and so it must be treated that the applicant had the knowledge of the institution of the case and he appeared in the suit on getting summons but on 08.01.2004 she did not take any step. Thereafter, a date was fixed for ex parte evidence. On that day too, the petitioner did not appear and ultimately, the ex parte decree was passed on 17.02.2004. This being the position, the period of 30 days of limitation for setting aside the ex parte decree should be counted from the date of 17.02.2004 and not from the date that he got information on 05.07.2005.